Ghorbani

Citation – [2015] EWCA Crim 275 (unreported / not on BAILII)

Date – 12th February 2015

Keywords – Conviction, s31, Guilty plea

Overview – Appeal against conviction following a guilty plea refused as wrong advice not given

Summary – G was an Iranian woman married to a man with dual British and Iranian nationality. He had been accused of being a British spy and she was arrested and detained. As a result, she used an agent to come to the UK, leaving Iran overgroud to Turkey and by ferry to Copenhagen where she stayed two nights before flying to the UK on 22^nd August 2011. G claimed asylum straight away.

The history in Court was not entirely clear, but G pleaded guilty on 11^th November.

Crucially, she was advised of the s31 defence on three occasions and on 3^rd November “she is thinking of pleading guilty so she can get out of prison quicker and is therefore undecided [as to plea]”. On the 11^th it was recorded that “she just wishes to get it over and done with, I have advised her of the defence again and she wishes to plead guilty”. She signed an endorsement to this.

She was later granted asylum.

The Court held that the “guilty plea was intentionally and freely given, it was unequivocal following proper advice and cannot be said to be a nullity”.

Comment –

(1) On the law, the decision cannot be faulted. It is clear that Ms Ghorbani was fully and properly advised, which effectively scuppered any chance of appeal. The attempt to draw an analogy with Victims of Trafficking was always doomed to fail.

(2) Criminal justice, we are told, “is not a game … It is a search for truth“. If so, and we wish to convict the guilty and acquit the innocent, then how should the Court approach an appeal such as this one? Here, on the facts we can say that a defence would ‘quite probably have succeeded‘, in other words, it is more likely than not that Ms Ghorbani is innocent, and yet she remains convicted because of a tactical decision. Is this consistent with the overriding objective?

It is a very difficult area. A guilty plea should be conclusive evidence of guilt, and the Court of Appeal are understandably extremely reluctant to let anyone appeal against a conviction following a plea of guilty. This issue is wider than immigration offences, when can a Court leave convicted someone about whom there is serious doubts about their guilt?

(3) As is often the case, the Court appears to elide the two possibile ways a guilty plea can be appealed (a nullity versus a more general ‘interest of justice’ test). It would not have made a difference.

Judges – Sharp LJ, Goss J, HHJ Kramer QC